Judge: James C. Chalfant, Case: 22STCP02423, Date: 2022-10-11 Tentative Ruling

Case Number: 22STCP02423    Hearing Date: October 11, 2022    Dept: 85

            Respondents Regents of the University of California (“Regents”) and its Title IX Director Mohammed Cato (“Cato”) demur to the Petition filed by Petitioner Jane Doe.

            The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Doe filed this Petition on January 19, 2022, alleging in pertinent part as follows. 

            Doe is a 30-year-old graduate student in a UCLA residency program.  Pet., ¶14.  John Roe (“Roe”) is a 31-year-old graduate student in a different program.  Pet., ¶15.  Both Roe and Doe live in private residences off-campus that have no relation nor connection to the UCLA campus system.  Pet., ¶16.  They met through a dating app in May 2020 and began a relationship in July 2020.  Pet., ¶17. 

When Doe discovered Roe being unfaithful, she ended the relationship on May 25, 2021.  Pet., ¶18.  The parties argued, and Roe left, taking Doe’s phone by accident.  Pet., ¶19.  Roe returned the phone and Doe paid $578.57 in expenses connected to the break-up.  They agreed to remain civil after a final message on June 1, 2021.  Pet., ¶¶ 20-25. 

            On September 30, 2021, Doe posted that she was in a new relationship.  Pet., ¶27.  Roe contacted UCLA about filing a Title IX complaint against Doe, which he did on January 5, 2022.  Pet., ¶¶ 27-28.  His complaint alleged that Doe touched him inappropriately, pushed him in either late 2020 or early 2021, threw his phone and cracked it, and slapped him multiple times during a conversation in May 2020.  Pet., ¶¶ 29-30.   On Regent’s advice, Roe also submitted a criminal report against Doe.  The police did not respond.  Pet., ¶31. 

            On March 4, 2022, UCLA’s Title IX Director Cato informed Doe of Roe’s allegations and that, because it was not tied to a UCLA program or activity, UCLA’s Doe Grievance Process was not appropriate for its resolution.  Pet., ¶33.  Cato therefore dismissed the complaint from that process.  However, Cato also informed Doe that UCLA had opened a formal investigation into Roe’s allegations.  Pet., ¶34.

            On June 21, 2022, Cato added the charge of Stalking under UCLA’s SVSH Policy even though Roe told UCLA that Doe mostly left him alone after the breakup.  Pet., ¶34.  UCLA plans to move forward with a formal disciplinary investigation, despite the fact that the conduct occurred off-campus and was unconnected to UCLA activities.  Pet., ¶35.  Doe is facing serious sanctions and the loss of her education.  Pet., ¶36.  Yet, UCLA’s administrative disciplinary process does not comply with due process and California law.  Pet., ¶¶ 36-37.

            Petitioner Doe seeks writs of prohibition and mandate restraining Respondents from prosecuting her and other similarly situated students at the University of California and attorney’s fees and costs.

            2. Course of Proceedings

            On June 30, 2022, Doe personally served Regents with the Petition and Summons.  No proof of service is on file for Respondent Cato.

            B. Applicable Law 

            Demurrers are permitted in administrative mandate proceedings.  CCP §§1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face. 

            Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364. 

            A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36.  CCP §430.10.  Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.  The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.   

            The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709. 

            For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.31(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  CCP §430.31(a)(1).  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.31(a)(3).   

            C. Statement of Facts[2]

            1. The Policy and Procedure

            The Regents’[3] Sexual Violence and Sexual Harassment (“SVSH”) Policy applies to all University of California employees, students, and third parties.  RJN Ex. C, p. 9.  Its stated purpose is to create an environment where all people who participate in University programs and activities can work and learn together in an atmosphere free of harassment, exploitation, or intimidation.  RJN Ex. C, p. 1.

            Prohibited Conduct includes relationship violence, defined as (1) physical violence toward a complainant or a person who has a close relationship with a complainant (such as a current or former spouse or intimate partner, a child or other relative); or (2) intentional or reckless physical or non-physical conduct toward a complainant or someone who has a close relationship with the complainant that would make a reasonable person in the same position fear physical violence toward themselves or toward the person with whom they have the close relationship.  RJN Ex. C, p. 4.

            Prohibited Conduct also includes stalking, defined as repeated conduct directed at a complainant of a sexual, romantic, or other sex-based nature or motivation, that would cause a reasonable person to fear for their safety, or the safety of others, or to suffer substantial emotional distress.  RJN Ex. C, p. 5.

            The SVSH Policy covers acts of Prohibited Conduct committed by University students, employees, and third parties, and acts of Prohibited Conduct committed against students, employees, and third parties when the conduct occurs (a) on University property, (b) in connection with University employment or in the context of a University program or activity, or (c) off University property and outside the context of a University program or activity, but it has continuing adverse effects on—or creates a hostile environment for students, employees or third parties while on—University property or in any University program or activity.  RJN Ex. C, p. 9.

            The Investigation and Adjudication Framework for Staff and Non-Faculty Academic Personnel (“NFAP Adjudication Framework”) provides the adjudication process for SVSH investigations.  RJN Ex. D.  Upon receipt of a complaint, the Title IX Officer will determine if the allegations are Department of Education (“DOE”)-covered conduct or other SVSH Policy violations.  RJN Ex. D, p. 3. 

            The investigation begins with notice to the parties identifying them and explaining the policies at issue and core parts of the process.  RJN Ex. D, p. 5.  The Title IX Officer designates an investigator to conduct a thorough and impartial investigation, during which both parties can meet with the investigator and present their evidence and arguments.  RJN Ex. D, p. 6.  The investigator prepares a written report of factual findings and conclusions as to whether a violation of policy occurred.  RJN Ex. D, p. 9.  The Title IX Officer or designee will send notice of the investigation outcome and report, as redacted, to the parties.  RJN Ex. D, p. 10.

            The procedure does not include a hearing or appeal for non-DOE-Covered Conduct.  RJN Ex. D, p. 3.  In those cases, the parties may provide written responses to the Chancellor’s designee that include a proposed resolution to the matter.  RJN Ex. D, p. 12.  The designee then decides how to respond to the matter, and the university implements that decision in accordance with applicable policies.  RJN Ex. D, p. 13.

            2. The Investigation

            On March 4, 2022, Cato sent a letter to Doe informing her of Roe’s allegations that she touched him in an inappropriate way when she pushed him in late 2020 or early 2021 and separately threw his phone and cracked it.  Pet., ¶¶ 29, 33.  Cato concluded that the allegations do not meet the definition of DOE-Covered Conduct and therefore was not subject to a DOE Grievance Process investigation.  Id.  The allegations did, however, warrant a formal investigation under SVSH Policy section I.B.d.  Pet., ¶34.  Cato later added an allegation of Stalking under SVSH Policy Section II.B.1.d.  Pet. ¶34. 

            3. Meet and Confer

            The parties met and conferred via telephone on August 19, 2022 but could not resolve the objections in the demurrer.  Cart Decl., ¶2.

            D. Analysis

            Respondents demur to the Petition on the grounds that it seeks a writ of prohibition under CCP section 1102, traditional mandate under CCP section 1085, and administrative mandamus under CCP section 1094.5, all of which fail as a matter of law.  Respondents also contend that Cato is not a proper party.

            1. Writ of Prohibition

            The parties agree that the Petition seeks a writ of prohibition against Regents.  Dem. at 7; Opp. at 11.  A writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.  CCP §1102. 

            A writ of prohibition is a narrow writ intended to restrain judicial actions in excess of jurisdiction.  CCP §1102; International Film Investors v. Arbitration Tribunal of Directors Guild of America, Inc., (“International Film”) (1984) 152 Cal.App.3d 699, 704 (prohibition will not lie to restrain acts of arbitrator).

            In International Film, the plaintiff petitioned the superior court for a writ of prohibition seeking to prevent the commencement of arbitration proceedings. 152 Cal.App.3d at 703.  The trial court denied the writ, and the appellate court dismissed the appeal.  The court noted that, while a writ of prohibition has been approved to restrain enforcement of a trial court order of matter to be arbitration, “prohibition was not the proper remedy since there was no judicial act to be restrained.  Prohibition is a writ to restrain judicial actions in excess of jurisdiction.  (Code Civ. Proc., § 1102.)  It does not lie to restrain the acts of an arbitrator.”  Id. at 704 (italics in original).

            Petitioner Doe cites no authority that a writ of prohibition will lie to restrain any entity other than a court, whether a private entity or even a public agency performing quasi-administrative functions.  The court does not believe it can be stretched beyond prohibiting action by a court.

            In any event, a writ of prohibition lies only to “preventively preempt jurisdictional defects or errors”.  Saunders v. Superior Court, (2017) 12 Cal.App.5^th Supp. 1, 11 (trial court had jurisdiction to decide whether cell phone records seized pursuant to search warrant were subject to public access).  Regents’ SVSH Policy unquestionably grants it the authority to investigate Relationship Violence and Stalking occurring Off University property and outside the context of a University program or activity” if it “has continuing adverse effects on – or creates a hostile environment for students employees or third parties” while on University property or in a University program or activity.  RJN Ex. C, p. 9. 

            As Regents argue, whether this authority is conferred by Title IX is irrelevant.  The University is entitled to adopt its own policies governing student, employee, and third-party conduct, even if broader than that required for federal funding under Title IX.  Dem. at 8-9; Reply at 3.  Under the SVSH Policy, the University’s jurisdiction depends on whether Doe committed prohibited acts off campus that have continuing effects or create a hostile environment on campus.  Regents will serve as the arbiter of fact on that issue.  In other words, the facts developed by UCLA’s investigation will include the facts concerning jurisdiction.  Until that occurs, a writ of prohibition could not issue.  City of Los Angeles v. Superior Court, (1959) 51 Cal.2d 423, 430. 

            Doe notes that the University is a public trust and Regents are a corporation that has constitutional power to manage that trust.  Cal. Const. art. IX, §9.  Doe argues that the University’s jurisdiction “is limited by its statutory authorization”, and Regents do not have the authority to enforce the SVSH Policy and discipline.  Opp. at 11. 

            The University of California is a statewide administrative agency of constitutional origin with broad powers to organize and govern the University, including quasi-judicial and quasi-legislative powers with respect to student affairs.  See Doe v. Regents of University of California, (2013) 216 Cal.App.4th 1474, 1485-88.  These powers necessarily include off campus actions by students or employees that impact the environment on campus.  The SVSH Policy regulates off-campus conduct only when it may create a hostile environment on-campus for students and faculty.  RJN Ex. C, p. 9.  Doe presents no authority for her position that Regents cannot regulate such actions other than her general reliance on Regents’ broad constitutional (not statutory) authority. 

            A writ of prohibition cannot lie to prevent Regents’ investigation of SVSH Policy violations.

            2. Traditional Mandate

            A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”  CCP §1085.  A writ of mandate under CCP section 1085 will lie when the respondent has a ministerial, non-discretionary duty to perform and the petitioner has a clear and beneficial right to performance.  Pomona Police Officers’ Assn. v City of Pomona, (1997) 58 Cal.App.4th 578, 583-84; Shamsian v. Dep’t of Conservation, (2006) 136 Cal.App.4th 621, 640.

            Petitioner Doe contends that Regents have a clear, present, and ministerial duty only to investigate matters within the University’s jurisdiction.  Opp. at 13.

            Although Doe points to no statutory or constitutional duty, her argument is essentially the same as for a writ of prohibition: Regents do not have jurisdiction over the off-campus events alleged by Doe.  Again, the University’s jurisdiction is fact-dependent.  If Doe committed acts of Relationship Violence and Stalking off UCLA’s campus that have continuing adverse effects on, or create a hostile environment for Roe on UCLA property or in a UCLA program or activity, Regents’ SVSH Policy unquestionably grants it the authority to investigate. 

            A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086.  As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies.  See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.  A failure to allege exhaustion of administrative remedies or facts excusing the failure to exhaust renders the petition subject to demurrer for failure to state a cause of action.  See, e.g., Stenocord Corp. v. City & County of San Francisco, (1970) 2 Cal.3d 984, 990.

            Doe argues that the final administrative decision at issue is Cato’s decision that Doe’s conduct occurred off campus for which the University has jurisdiction.  This decision authorizing an investigation into Doe’s actions is not subject to hearing or appeal under SVSH Policy.  Opp. at 13-14.

            Not so.  Cato’s decision to open a formal investigation under SVSH Policy is not the final University’s decision on jurisdiction.  Upon receipt of a complaint, the Title IX Officer will determine if the allegations are DOE-covered conduct or other SVSH Policy violations.  RJN Ex. D, p. 3.  For non-DOE-covered conduct, there follows an investigation, a report, and an outcome.  RJN Ex. D, pp. 5-10.  Where jurisdiction is at issue, part of this decision will include a fact-dependent conclusion on jurisdiction.  UCLA has made no final determination of its jurisdiction in Doe’s matter.  To the extent that Doe is complaining that Cato made an initial decision to conduct an investigation based on the prospect of jurisdiction, his decision is neither final nor reviewable.  Doe must participate in this process in order to exhaust her remedies before bringing this action.  Reply at 7.  Doe has failed to state a claim for traditional mandamus under CCP section 1085.

            3. Administrative Mandate

            CCP section 1094.5(a) provides for writs of mandate after a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer. 

            Regents asserts that until there has been no final decision in Doe’s matter and Doe has not exhausted her administrative remedies through a final decision.  Dem. at 11-13. 

            Doe does not seriously dispute that she has no administrative mandamus claim, albeit because there is no hearing required by law for non-DOE-covered conduct under SVSH Policy.  The CCP section 1094.5 claim fails for lack of exhaustion of remedies.

            4. Cato as a Respondent

            Regents asserts that Cato is not a proper Respondent because the public entity, not its individual members, is the actual defendant.  Sperry & Hutchinson Co. v. Cal. St. Bd. of Pharmacy (1996), 241 Cal. App. 2d 229, 236.  This issue is moot because Doe has no claim for a prerogative writ. 

            In any event, individual officers or members of the agency may be named as respondent in administrative mandamus actions where they are the final decision-maker who will implement the court’s writ.  Doe v. Allee (2019), 30 Cal.App.5th 1036.  Cato is the Title IX Director who made the initial determination of the University’s jurisdiction. 

            Regents assert that a campus Title IX officer does not have any authority beyond that granted to them by the Regents, who hold the full powers of organization and governance.  Reply at 9; Cal Const. art. IX, §9.  The court would agree if Doe was seeking review of a final administrative decision.  In this case, however, she is seeking review of Cato’s decision as the Title IX Director to conduct an investigation.  He is the proper respondent for this case, even though the demurrer must be sustained because Doe has not stated a claim.

            E. Conclusion

            The demurrer to the Petition is sustained without leave to amend.  An OSC re: dismissal is set for October 25, 2022 at 1:30 p.m.